Smith v Minister for Immigration
[2007] FMCA 1063
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SMITH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1063 |
| MIGRATION – Application for distinguished talent (Resident) visa – tribunal ask itself the right question – no jurisdictional error established – application for review dismissed. |
| Migration Act1958 (Cth) |
| Gaffar v MIMA (2000) FCA 293 Minh Fon Do v MIMA (2002) FCA 108 Vean of 2002 v MIMIA (2003) FCAFC 311 |
| Applicant: | RYAN SMITH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | BRG746 of 2006 |
| Judgment of: | Baumann FM |
| Hearing date: | 6 February 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Applicant: | Self Represented |
| Counsel for the Respondent: | Ms Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application for Review be dismissed.
Applicant pay a contribution to the costs of the Respondent fixed in the sum of three thousand dollars ($3,000) within sixty (60) days.
I direct that the Exhibit (being the Applicant’s portfolio) be returned to the Applicant forthwith.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG746 of 2006
| RYAN SMITH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Ryan Smith is a national of the Republic of South Africa now aged 35. The Applicant applied for a Distinguished Talent (Residence) (Class BX) subclass 858 visa on 13 July 2004 and a delegate refused the visa application on 16 December 2004.
Although the Applicant purported to file an Application for Review to the Migration Review Tribunal (“MRT”) on 10 January 2005, the Applicant did eventually provide the Application fee on 27 September 2005.
On 17 October 2005 an invitation to comment on information pursuant to s359A of the Migration Act 1958 was given to the Applicant and extensions of time were given to the respond, but not complied with by the Applicant.
A hearing proceeded on 3 March 2006 and a decision was handed down on 4 September 2006. The Applicant, although invited, did not attend at either of these events.
The MRT affirmed the decision under review, and the Applicant filed for Judicial Review in this Court on 9 October 2006. Although it is necessary under s477 of the Act to file the Application for Judicial Review within 28 days of the actual notification of the decision, no notice alleging the Application was incompetent was filed by the Respondent.
Time limits
Before turning to the substantive application, it is necessary to consider whether the application was actually filed within the prescribed time limits. On the material before the Court, and not challenged by the Applicant who was without the benefit of legal representation, the following chronology of events occurred:-
16 December 2004 – Delegate makes decision to refuse visa application.
14 January 2005 – MRT received Application for Review accompanied by fee waiver for the $1400 fee.
20 April 2005 – MRT advises Applicant fee waiver application is refused. This notification, including notice that the fee was to be paid within 14 days, was sent by email to the Applicant. A response to the email indicating it was “undeliverable” was received. A “hard copy” of the letter to the Applicant’s postal address was also returned to the MRT with the notation “Left Address/Unknown”.
23 May 2005 – MRT gives written notice to Applicant, again at the address for service set out in his application, to comment within 28 days as to why “your application for review may not be eligible because your request for a fee waiver was refused and the prescribed application fee was not paid to the Tribunal within the time allowed”.
23 May 2005 – Applicant makes an application for a bridging visa B (to seek permission to travel) out of Australia between 25 May 2005 and 10 June 2005.
16 June 2005 – Applicant sends email to MRT officer Deidre Olliver in effect seeking an extension to pay the appropriate fee.
5 August 2005 – Letter to Applicant asking that he submit documentary evidence for the period commencing 21 February 2005 to enable the MRT to make “a reasoned and timely assessment of the waiver request”.
18 August 2005 –
MRT asserts letter sent to Applicant that fee waiver was refused and, again requesting the Applicant to pay the fee by
1 September 2005. A copy of this letter is not contained within the Relevant Documents (“RD”).
2 September 2005 – Letter to Applicant advising him that as the payment had not been received by the MRT, the application is deemed “ineligible”.
One might think that would be the end of the matter. However on the documents before the Court, in an exchange of emails between the Applicant and a Tribunal Officer Tony Palmer it seems that at or about the time the “official” letter from the MRT to the Applicant was sent advising the Application was ineligible, the MRT granted a further extension to pay the Application fee advising, in respect to the Applicant’s request to pay the fee in instalments by 26 September that:-
“We cannot accept part-payments, but will accept full payment on 26 September. Please make sure payment is made on that date, as no further extension of time will be granted.”
It is unclear how the letter dated 2 September sits comfortably with the further extension of time granted to 26 September 2005. The fee was paid on 27 September 2005.
The decision does not refer to this history but says at paragraph 2 of the decision that the delegate’s decision:-
“…is reviewable by the Tribunal and the Application for Review has been properly made by a person with standing to apply for review” (my emphasis).
The Respondent, in written and oral submissions contends that:-
a)The MRT does not simply have power to “override” the limitations prescribed by the Act (Vean of 2002 v MIMIA (2003) FCAFC 311 at [32] – [33]).
b)The MRT has not considered whether or not the application was actually filed within the prescribed time and says the application was not filed within time and is ineligible.
Confusing as the history is, it appears that he MRT officers had been particularly accommodating to the Applicant. They, in effect gave him 5 months to pay the application fee, first sought in the letter of 20 April 2005 when the application for few waiver was rejected.
The actions of MRT officer Palmer to write to the Applicant on or about 19 September 2005 and give the Applicant to 27 September 2005 to pay the fee amounts to an implicit withdrawal of the letter dated
2 September 2005. Whilst I have some doubt about the authority of the Tribunal Officer to do so, in the absence of some detailed submissions on this point, I have decided not to consider this point further.
Simply, despite the lengthy delays, the MRT (who have the authority to waive fees), granted the Applicant to 27 September 2005 to pay the fee – which the Applicant did. Although the payment was outside a reasonable time limit from the first request on 20 April 2005, it was paid within a reasonable period of the last demand by the MRT, and as such I find the Application for Review should be deemed to have been filed within the prescribed time (s347(1)(b)).
Decision of MRT
A Distinguished Talent subclass 858 visa requires satisfaction of the criteria as outlined in paragraph 858.212(2) namely:-
“(2) The applicant:
(a)has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:
(i) a profession;
(ii) a sport;
(iii) the arts;
(iv) academia and research; and
(b) is still prominent in the area; and
(c) would be an asset to the Australian community; and
(d)would have no difficulty in obtaining employment, or in becoming established independently, in Australia, in the area; and
(e) produces a completed, approved Form 1000; and
(f) if the applicant has not turned 18, or is at least 55 years old at the time of the application – would be of exceptional benefit to the Australian community.”
Critically in my view, after considering all the evidence the MRT says at paragraphs 21 to 24 that:-
“21.The Tribunal accepts that the visa applicant has established himself as a designer within his niche market. He has achieved recognition for his brand and some favourable press. He has had some success in selling his clothing to a number of countries around the world.
22.The Tribunal accepts the assessment of the nominators for the visa applicant has constantly improved his skills as a leading designer and that he strives for the best possible products for the Australian public. The Tribunal accepts Ms Jones’s assessment that the visa applicant has worked hard to achieve the high profile of his fashion label and that he has worked closely with ‘makers’, buyers and retailers to achieve a quality product. The Tribunal has carefully considered all the evidence submitted and is of the view that it established that the visa applicant is talented and that and that he was working hard at the time of application to establish his niche brand in the local and international fashion industries. The Tribunal is of the view that at the time of application the visa applicant was in the process of establishing an international reputation and had clearly had some success in that regard. However, the Tribunal is not satisfied that the evidence establishes that at the time of application the visa applicant had an internationally recognised record of exceptional and outstanding achievement in his profession.
23.On the basis of the findings set out above, the Tribunal is not satisfied that at the time of application, the visa applicant had an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts and academia and research.
24.The Tribunal finds that the visa applicant does not meet paragraph 858.212(2)(a) and therefore he does not meet the requirements of subclause 858.212(2).”
Grounds for application
The Applicant chose not to file any written submission (although directed to do so). His oral submissions at the hearing before me were almost entirely directed to the merits of Application and despite my best endeavours to identify the important yet narrow jurisdiction this Court exercises in these matters, I was left with the clear impression that the Applicant failed to appreciate a merits review by the Court was impermissible. The Applicant insisted I look at his “portfolio”, which contained many of the pages in the Respondent’s Documents, but in colour. The portfolio should be released to the Applicant within 45 days of this decision.
The 3 primary grounds I believe the Applicant relied upon before me are:-
(a)The MRT’s reliance on the decision of French J in Gaffar v MIMA (2000) FCA 293 was wrong;
(b)The MRT’s interpretation of the word “international” was “unclear and of a biased opinion” and the MRT also “failed to recognise further evidence”; and
(c)The “decision maker is also uneducated in the field of fashion and desighn (sic) and clearly not understands the industry”.
Discussion
Gaffar was a decision dealing with the applicable criteria for a subclass 805 (skilled) visa required “an exceptional record of achievement in that occupation, profession or activity”.
As the submissions of the Respondent identify, the requirements of the subclass 805 visa in Gaffar, are not as high as the requirements in this case under a subclass 858 visa where the criteria the Applicant:-
“has an internationally recognised record of exceptional and outstanding achievement” (my emphasis).
Independent evidence of recognition of the “Smithy” brand in other countries was provided to the MRT – however the MRT was not satisfied that the recognition of the brand translated to the Applicant having “an internationally recognised record”. Rather, the MRT found at the time of the application, the Applicant was “in the process of establishing an international reputation”.
The finding was well open to the MRT.
The MRT found the Applicant works hard to achieve the high profile of this fashion label but again was not satisfied the Applicant has a record “of exceptional and outstanding achievement”, which at an internationally recognised level would have to be higher than “achievement which significantly surpasses that of the general run of those engaged in the relevant professional occupational pursuit” (the test for the lower level subclass 805 visa defined in Minh Fon Do v MIMA (2002) FCA 108 at [20]).
It is unlikely that any member of the MRT, or for that matter, this Court would have the personal appreciation of the international fashion industry which the Applicant claims to possess. However, the task of the MRT was, on the evidence provided to it, to ask itself the right question and apply the evidence to the determination of the facts posed by the criteria. The passages quoted above at paragraph [14] shows that it did.
In my view the MRT has not been shown to have fallen into error of a jurisdictional nature, and, as a result the decision of the MRT is a privative clause decision for the purposes of s.474.
I am therefore bound by law to dismiss the Application. Costs should follow the event.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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